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Supreme Court poised to reconsider key tenets of online speech

The Supreme Court may reconsider rules that offer social media platforms legal protections from government oversight and liability; the outcomes could lead to the most significant reset of doctrines governing online speech since the 1990s.Richard Drew/Associated Press

WASHINGTON — For years, giant social networks like Facebook, Twitter, and Instagram have operated under two crucial tenets.

The first is that the platforms have the power to decide what content to keep online and what to take down, free from government oversight. The second is that the websites cannot be held legally responsible for most of what their users post online, shielding the companies from lawsuits over libelous speech, extremist content, and real-world harm linked to their platforms.

Now the Supreme Court is poised to reconsider those rules, potentially leading to the most significant reset of the doctrines governing online speech since US officials and courts decided to apply few regulations to the web in the 1990s.

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On Friday, the Supreme Court is expected to discuss whether to hear two cases that challenge laws in Texas and Florida barring online platforms from taking down certain political content. Next month, the court is scheduled to hear a case that questions Section 230, a 1996 statute that protects the platforms from liability for the content posted by their users.

The cases could eventually alter the hands-off legal position that the United States has largely taken toward online speech, potentially upending the businesses of TikTok, Twitter, Snap, and Meta, which owns Facebook and Instagram.

“It’s a moment when everything might change,” said Daphne Keller, a former lawyer for Google who directs a program at Stanford University’s Cyber Policy Center.

The cases are part of a growing global battle over how to handle harmful speech online. In recent years, as Facebook and other sites attracted billions of users and became influential communications conduits, the power they wielded came under increasing scrutiny. Questions arose over how the social networks might have unduly affected elections, genocides, wars, and political debates.

The Supreme Court case that challenges Section 230 of the Communications Decency Act is likely to have many ripple effects. While newspapers and magazines can be sued over what they publish, Section 230 shields online platforms from lawsuits over most content posted by their users. It also protects platforms from lawsuits when they take down posts.

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For years, judges cited the law in dismissing claims against Facebook, Twitter, and YouTube, ensuring that the companies did not take on new legal liability with each status update, post, and viral video. Critics said the law was a Get Out of Jail Free card for the tech giants.

“If they don’t have any liability at the back end for any of the harms that are facilitated, they have basically a mandate to be as reckless as possible,” said Mary Anne Franks, a University of Miami law professor.

The Supreme Court previously declined to hear several cases challenging the statute. In 2020, the court turned down a lawsuit, by the families of individuals killed in terrorist attacks, that said Facebook was responsible for promoting extremist content. In 2019, the court declined to hear the case of a man who said his former boyfriend sent people to harass him using the dating app Grindr. The man sued the app, saying it had a flawed product.

But on Feb. 21, the court plans to hear the case of Gonzalez v. Google, which was brought by the family of an American killed in Paris during an attack by followers of the Islamic State. In its lawsuit, the family said Section 230 should not shield YouTube from the claim that the video site supported terrorism when its algorithms recommended Islamic State videos to users. The suit argues that recommendations can count as their own form of content produced by the platform, removing them from the protection of Section 230.

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A day later, the court plans to consider a second case, Twitter v. Taamneh. It deals with a related question about when platforms are legally responsible for supporting terrorism under federal law.

Eric Schnapper, a University of Washington law professor who is one of the lawyers representing the plaintiffs in both cases, said in an interview that the arguments were narrow enough that they wouldn’t change wide swaths of the internet. “The whole system doesn’t break down,” he said.

But Halimah DeLaine Prado, Google’s general counsel, said in an interview that “any negative ruling in this case, narrow or otherwise, is going to fundamentally change how the internet works,” since it could result in the removal of recommendation algorithms that are “integral” to the web.

Twitter did not respond to a request for comment.

Tech companies are also closely watching the Texas and Florida cases. Both states passed laws prohibiting social networks from taking down certain content after Twitter and Facebook barred then-President Donald Trump following the Jan. 6, 2021, riot at the US Capitol. Texas’ law lets users sue if a large online platform removes their post because of the “viewpoint” it expresses. The Florida law fines platforms that permanently ban the accounts of a candidate for office in the state.

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NetChoice and CCIA, groups funded by Facebook, Google, Twitter, and other tech companies, sued to block the laws in 2021. The groups argued that the companies had a constitutional right to decide what content to host.